When Senator Wyden, D-Oregon, spoke at Stanford Law School on the February 17th, he said he does not have enough information about the NSA warrantless domestic wiretapping program to fulfill his oversight duty. I found this statement surprising and disturbing, considering Senator Wyden is a member of the Senate Intelligence Committee. When listening to the earlier senate hearings I had assumed that the many questions administration officials declined to answer on the grounds of protecting intelligence operations and methods were being answered in closed door sessions with appropriately cleared Intelligence committee members. Apparently the administration has been less than forthcoming in closed door sessions as well. Senate Intelligence committee chairman Pat Roberts, R Kansas, has so far prevented the committee from voting to start a classified investigation of the program, because he says an investigation would be detrimental to the program.
Under 50 U.S.C. § 413, the President has a duty to keep the congressional intelligence committees "fully and currently informed" about intelligence activities. § 413(e) goes on to say, "[N]othing in this Act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the intelligence committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods." Administration officials claim the president fulfilled his duty to disclose the program by informing a special group of 4 senators and 4 house members. The basis for this limited disclosure procedure is § 413b(c)(2). However § 413b only applies to "covert actions" which are a subspecies of intelligence activities defined in § 413b(e) as
"activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does NOT include--
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;
(2) traditional diplomatic or military activities or routine support to such activities;
(3) traditional law enforcement activities conducted by United States
Government law enforcement agencies or routine support to such activities; or
(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad."
It seems to me that it is quite a stretch to fit the warrantless domestic wiretapping program into this definition. This definition anticipates actions targeting foreign entities and explicitly excludes law enforcement and military activities, which are done openly in the name of the United States. We all know President is fighting terrorism. Why can't Intelligence Committee members know about our methods? This is particularly troubling, because the program in question targets Americans and threatens our civil liberties. When these interests are involved there should be more congressional oversight, not less. I am having a hard time conceiving of a legitimate reason why the rest of the congressional intelligence committees should be kept in the dark about this program.
You can find more info on the laws and rules that apply to intelligence here.
50 U.S.C. § 413 was crafted in the context of a larger scheme that segregated domestic and foreign intelligence activities to minimize the risk of secret police style abuses. Since 9/11/01, legislation including the Intelligence Reform and Terrorism Prevention Act of 2004 has broken down the wall between domestic and foreign intelligence activities. As we break down this wall to facilitate the fight against terrorism, it seems to me that we should be strengthening the congressional oversight provisions to compensate for the increased risks of abuse. Instead the administration is arguing for an extremely narrow interpretation of the president's duty to inform the congress under the original scheme.
Senator Roberts has promised to consider a Democratic request for a vote on Tuesday to determine whether to launch an investigation of the program. Let's hope the Senate does not continue to shirk its oversight duties. I for one want more than simply the benevolence of the President protecting our civil liberties.